Notwithstanding....

BAck almost 45 years ago as negotiation were happening to repatriate the Constitution a decision was made. Some provincial governments were wary of the Charter of Rights and Freedoms and certainly were wary of Federal overreach. As a result we got the Notwithstanding CLause, whereby any Federal or PRovincial government could override court rulings that legislation violated the Charter to keep legislation in force for a period of five years at a time (it can be renewed). This also helps defend the supremacy of the legislative branch of government (for those who see that as an issue)

My memory is that for many years the use of this clause was seen as a step governments were beyond reluctant to take. ANd it has not ben used a lot since 1982.

Certainly I think that back in 1981/82 the people involved saw it as a last resort, one to use after all judicial pathways have been used.

Now let's jump to 2025. Within a month one provincial government has used the NWC twice. In both cases before the issues have had a chance to be heard by the courts. Once to end a teacher's strike and impose a contract. The other to 'protect' 3 anti-trans pieces of legislation in the name of "protecting teens and youth".
{those pieces of legislation have to do with: 1)students needing permission (or notification for older students) to have schools use preferred names and pronouns; 2)blocking health care interventions including puberty blockers for teens (just to note that puberty blockers really only work for pre-pubescent people and are not considered to have permanent effects on fertility despite the claim that this is in part to protect said fertility); 3)bar trans girls form participating in girls sports

Despite what you think about back-to-work legislation or the question of reasonable limits on LGBTQ questions (and i may have strong opinions) the real question that comes up for me around the NWC is are these appropriate uses.
Is it appropriate to use it proactively, to quash the chance you might lose in court?
Is this just a heavy-handed way of government to get its way?
OR is it time-saving measure to provide stability that might be lacking given that court proceedings may move slowly?

Here is a column written by a former Alberta Minister of Education under PEter Lougheed in repsonse to the AB government use of the NWC to end the teacher's strike. DAvid King is the sone of a UCCAn minister. I have served on a Camp Board with him and found him to someone worth listening to even though I may not have always agreed with him.

I personally question if the NWC should really exist? Or if it should have been worded to limit when it can be used to avoid such proactive use as we have seen recently (I beleive SK did the same with their anti-trans legislation)

I have never liked the existence of the NWC. It basically makes the Charter say you have rights until a government thinks you shouldn't.

The five year limit helps because that opens the door to a different government with different views being in power when it expires but that's still five years of someone's rights being limited and doesn't nerf it enough for me.

Personally, I would prefer that it not exist and that every piece of legislation be subject to the power of the judiciary. However, I think Trudeau and Chretien realized that provinces needed an "out" clause before they would agree.

Limits on proactive use would be a help. So would subjecting its use to judicial review rather than it being automatic when a province invokes it. Maybe if a province invokes it, the legislation in question and any challenges to it go straight to the supremes for a ruling on whether use of the NWC is justified. If they say it is not, then the lower courts are free to deal with the challenge in question.

It just doesn't stand up when out there ... like a cow pasture spruce ... prone to windy conditions!

GordW said:

I personally question if the NWC should really exist? Or if it should have been worded to limit when it can be used to avoid such proactive use as we have seen recently (I beleive SK did the same with their anti-trans legislation)

Click to expand...

Use of the NWC in Ontario has become almost commonplace in the current Ford government as it hurries to exert power over municipalities without any consultation. It's becoming a mechanism by which to create 'unappealable' statutes.

This morning a CBC interviewer speaking to ON gov solicitor general was asking - What's the point of having the Constitution if a provincial government can simply over-ride its principles? Good question that was asked several times - and not surprisingly, was never answered.

Perhaps the loss ability to civilly debate an issue in service seeking solutions that support the common good, rather than debase/denigrate different points of view as is current practice, is contributing to the increasing use of NWC.

Mendalla said:

Limits on proactive use would be a help. So would subjecting its use to judicial review rather than it being automatic when a province invokes it. Maybe if a province invokes it, the legislation in question and any challenges to it go straight to the supremes for a ruling on whether use of the NWC is justified. If they say it is not, then the lower courts are free to deal with the challenge in question.

Click to expand...

Some helpful suggestions, but current climate suggests that Conservatives like it so much that it will never be repaired.

I am so upset about the trans legislation. Goodbye 21st century ethics. Stupid mean people.

BetteTheRed said:

Goodbye 21st century ethics.

Click to expand...

Well, that's generally the goal, isn't it? Get rid of that pesky "woke" ethics and morality?

Mendalla said:

Get rid of that pesky "woke" ethics and morality?

Click to expand...

Yes, let's just "erase" anything outside of the Western white patriarchal experience.

BetteTheRed said:

Some helpful suggestions, but current climate suggests that Conservatives like it so much that it will never be repaired.

Click to expand...

More accurately, given the amending formula for the constitution any amendment requires much more agreement between provinces than is likely to happen any time soon

So with the current total abuse of the notwithstanding clause, what exactly is the point of our Charter?

The point of the Charter is to protect our rights. The fact that it does it badly does not change that. Prior to it, our rights were protected by a federal and provincial laws that could be amended and changed relatively easy and were not "universal", that is could be different from province to province. The Charter created a baseline that is the same across the country. Even the notwithstanding clause at least essentially forces a province to acknowledge that they are in violation of the Charter as interpreted by the courts. Pre-Charter, they could just amend their provincial human rights act and say the right in question did not exist. The Charter is not perfect and the notwithstanding clause is incredibly problematic and subject to abuse, but I would argue that it is still a better protector of human rights than we had before it existed.

BetteTheRed said:

Some helpful suggestions, but current climate suggests that Conservatives like it so much that it will never be repaired.

I am so upset about the trans legislation. Goodbye 21st century ethics. Stupid mean people.

Click to expand...

Are limits like governors? Should they be blind or very visible to the entire item of concern? There are those blinding urges as ultimate ... " I don't wish to watch!" declared ONE ... is that unified or integration ... ∫?

Mendalla said:

The point of the Charter is to protect our rights. The fact that it does it badly does not change that. Prior to it, our rights were protected by a federal and provincial laws that could be amended and changed relatively easy and were not "universal", that is could be different from province to province. The Charter created a baseline that is the same across the country. Even the notwithstanding clause at least essentially forces a province to acknowledge that they are in violation of the Charter as interpreted by the courts. Pre-Charter, they could just amend their provincial human rights act and say the right in question did not exist. The Charter is not perfect and the notwithstanding clause is incredibly problematic and subject to abuse, but I would argue that it is still a better protector of human rights than we had before it existed.

Click to expand...

It is hinted at that some "greatest" powers suggest exterminating all protesters except the source of protest ... those need to forge forward at their pleasure to allow the freedom to search for pleasure ... it can be a pain when undertaken responsibility ... a extremely irrational comprehension if you look at it from out there ...

In vast imbalance where the fulcrum is out of place ... a news item revealed that Tanzanians are questioning slaughter on the streets by police power! "This is democracy" they ask? No question is one response ...

Query arises in the House of Representation that senses poor reception ... could it be a bad source?

These things tend towards irrationality ... because of overwhelming willowing ... they low at dusk and sunrise ... eM's cowed ... Coot ... or, coupe? Shifty word across time as it evolves and cranks ... dizzying! Like the knights guise ... dark! The val' descends ... Val doer ... complex?

Expect alloys to al*lite ... iron meteors ... hard's at Ire ... enter the myth ... virtual unknown ... directly from dah video's sling ... Davi's? May be a route of self elimination if you get the swing of it ... implications?

Gof igure ... I gore? Can you be induced to immerse for a bit of life that is a pain? Then it departs ... in relief or with it ... for or against? Therein divinity divided ... split, sheered! Everything went ...

Why "everything" is no longer visible to those collected ... big odds you may have something there!

Out standing ... beyond the alternate ... understood? Circular logic in the spin ... will it wash?